FIU Law Review

Volume 11 Number 1 Article 14

Fall 2015

Provocative Speech in French Law: A Closer Look at Charlie Hebdo

Asma T. Uddin The Becket Fund for Religious Liberty

Follow this and additional works at: https://ecollections.law.fiu.edu/lawreview

Part of the Other Law Commons

Online ISSN: 2643-7759

Recommended Citation Asma T. Uddin, Provocative Speech in French Law: A Closer Look at Charlie Hebdo, 11 FIU L. Rev. 189 (2015). DOI: https://dx.doi.org/10.25148/lawrev.11.1.14

This Article is brought to you for free and open access by eCollections. It has been accepted for inclusion in FIU Law Review by an authorized editor of eCollections. For more information, please contact [email protected]. 37792-fiu_11-1 Sheet No. 98 Side A 04/28/2016 10:11:02 HE and At At ,T 2 (Jan. 9, COM . AIL M AILY D Charlie Hebdo , BBC, www.bbc.com/news/live/ cartoonists along with with along cartoonists * , a satirical French magazine. They and on January 9, took several people people several took 9, January on and 1 Charlie Hebdo NTRODUCTION . Social media became saturated with the I Asma T. Uddin Charlie Hebdo ) 4/25/16 9:33 PM As It Happened: Charlie Hebdo Attack ELETE Paris Attacks: Special Forces Hit Amedy Coulibaly with 40 Bullets D OT N O Gunman Who Shot Dead a Paris Policewoman the Day after the Charlie Hebdo A Closer Look at Charlie Hebdo Charlie at Look Closer A Charlie Hebdo (D Provocative Speech in French Law: French in Speech Provocative DOCX (Jan. 11, 2015, 9:49 PM), www.telegraph.co.uk/news/worldnews/europe/france/11338 925/ www.telegraph.co.uk/news/worldnews/europe/france/11338 PM), 9:49 2015, 11, (Jan. _4.25. 3 Peter Allen, Allen, Peter Mohamed Madi et al., Alexander, Harriet At 11:30 a.m. on January 7, 2015, brothers Cherif and Said Kouachi, During the chase, Amedy Coulibaly, a friend of the two terrorists, Both individuals and the French government responded zealously to Asma T. Uddin is Counsel at The Becket Fund for Religious Liberty and the founding Editor- * DDIN 1 2 3 M K ELEGRAPH world-europe-30710777 (last visited July 27, 2015). 27, July visited (last world-europe-30710777 masked, masked, dressed in black, and approached the offices of armed with Kalashnikov assault forced one of the magazine’s cartoonists rifles, to enter the code to the newsroom door. Upon entering the room, the men opened fire Stephane and killed Charbonnier, the editor, and four several others. The gunmen and Muhammad” “God is Great” in Arabic as they out called the names of shouted, “We have car. gunmenby The escaped journalists. the avenged the Prophet killed a policewoman in Montrouge, in-Chief of altmuslimah.com. of in-Chief T 11 - U 2015), www.dailymail.co.uk/news/article-2903347/Gunman-shot-dead-Paris-policewoman-day-Charlie- Hebdo-attack-linked-killers-gunned-magazine-staff-say-police.html. hostage at a kosher supermarket at Porte de Vincennes. Hehostage at a kosher supermarket at Porte de Vincennes. threatened to kill the hostages unless the Kouachi brothers were allowed to go free. the attack on the cause of freedom “aggressive enforcements” of of Law No. 2014-1353 speech. of November 13, The 2014, French an government anti-terrorism law commenced that was rarely used until the weeks prior to the Paris-attacks-Special-forces-hit-Amedy-Coulibaly-with-40-bullets.html. Paris-attacks-Special-forces-hit-Amedy-Coulibaly-with-40-bullets.html. Attack IS Linked to the Killers Who Gunned Down Magazine Staff, Say Police, around 5:00 p.m. that day, the police stormed the Coulibaly, supermarket and while killed another operation launched at the Kouachi same brothers, time who were killed hiding the in a Goele. printing firm in Dammartin-en- hashtag #JeSuisCharlie, or #IAmCharlie, as French citizens and individuals abroad rushed to show solidarity with the cartoonists of C Y 37792-fiu_11-1 Sheet No. 98 Side A 04/28/2016 10:11:02 A 04/28/2016 98 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 98 Side B 04/28/2016 10:11:02 4 M K EW C Y IMES , N cause. Charlie NY T N.Y. NPR (Feb. 10, 10, (Feb. NPR [Vol. 11:189 11:189 [Vol. noted that “[t]he “[t]he that noted glorified glorified Similarly, Jonathan Jonathan Similarly, 6 and Charlie Hebdo New Yorker about the spontaneous rally in in rally spontaneous the about 5 attacks, when the French government French Rein In Speech Backing Acts of Terror, attacks. The FIU Law Review Law FIU 7 after the attacks: “[O]ne could fairly ask what what ask fairly could “[O]ne attacks: the after ) 4/25/16 9:33 PM Washington Washington Post (Jan. 8, 2015), www.washingtonpost.com/opinions/what-it-means-to- 2015), 8, (Jan. The French Debate: Free Speech Versus Hate Speech, ELETE OST The Biggest Threat to French Free Speech Isn’t Terrorism. It’s the D P Why French Law Treats Dieudonné and Charlie Hebdo Differently Charlie Hebdo OT N O (D Charlie Hebdo ASHINGTON Charlie Hebdo DOCX W , _4.25. as a symbol of freedom of speech. (Jan. 15, 2015), www.newyorker.com/news/news-desk/french-law-treats-dieudonne-charlie- 2015), 15, (Jan. Doreen Carvajal & Alan Cowell, Cowell, Alan & Carvajal Doreen Beardsley, Eleanor Stille, Alexander Turley, Jonathan Various commentators and scholars have pointed out the double Indeed, the French government has a history of using its speech laws At the core of the French double standard is its inconsistent distinction www.npr.org/sections/parallels/2015/02/10/384959376/the-french-debate-free-speech-versus-hate DDIN 4 5 6 7 ORKER juxtaposition . . . of the celebration of a magazine that routinely publishes cartoons considered blasphemous and offensive by Muslims many and the muscular of prosecution of a the relentlessly provocative black world’s comedian” made the hypocrisy glaringly obvious. between protection and punishment of provocative speech. In paper Part I, will this look briefly at particular, how Articles international 19–20 law of treats the provocation, International in Covenant on Civil and Turley reflected in the support of they were rallying around. The greatest threat to liberty in France has come not from the terrorists who committed such horrific acts this past week but from the French themselves, who have been leading the Western world in a speech.” free on crackdown Government (Jan. 15, 2015), terror.html?_r=0. www.nytimes.com/2015/01/16/world/europe/french-rein-in-speech-backing-acts-of- standard in the French government’s treatment of speech, especially in the wake of the Among those prosecuted for their speech was Dieudonné M’Bala M’Bala, a French comedian, who Facebook was status that read, arrested “Tonight, as for far Charlie as Coulibaly.” The I’m “defending statement concerned, is a I combination terrorism” feel of the like slogan “Je in Charlie” suis (“I am Charlie”) and “Amedy Coulibaly,” the name of the gunman a who terrorized the kosher and supermarket,appears to imply sympathy with $37,000. fined was He terrorists. the to curtail the speech of journalists, citizens alike. comedians, That same celebrities, tendency of and restricting speech ordinary came into play the in wake of the simultaneously punished critics for Hebdo their speech Y 190 attacks, against anyone who spoke out against the 11 - U hebdo-differently. stand-with-charlie-hebdo/2015/01/08/ab416214-96e8-11e4-aabd-d0b93ff613d5_story.html. 2015), -speech. 37792-fiu_11-1 Sheet No. 98 Side B 04/28/2016 10:11:02 B 04/28/2016 98 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 99 Side A 04/28/2016 10:11:02 (Dec. 16, 16, (Dec. ATIONS between the 10 N NITED threat. Instead, the Article 19(3) states states 19(3) Article 191 191 9 , U , ACLU, www.aclu.org/faq-covenant- potential I , the U.S. Supreme Court found that ART P 11 Two Articles pertain directly to the freedom of of freedom the to directly pertain Articles Two 8 ), or of public health or morals.” Article 20(2) of ) 4/25/16 9:33 PM direct and immediate connection ELETE D Provocative Speech in French Law French in Speech Provocative OT Brandenburg v. Ohio N International Covenant on Civil and Political Rights O (D ordre public DOCX Id. _4.25. U.N. HRC Gen. Comment No. 34, 102nd session, July 11–29, 2011, CCPR/C/GC/34 (Sept. (Sept. CCPR/C/GC/34 2011, 11–29, July session, 102nd 34, No. Comment Gen. HRC U.N. FAQ: The Covenant on Civil & Political Rights (ICCPR) U.N. GAOR, GAOR, U.N. This Comment is significant as it notes the need for a “specific” threat The ICCPR is an international human rights by treaty the adopted U.N. When When a State party invokes a freedom legitimate ground for of restriction of individualized expression, fashion it the necessity and precise proportionality of must the specific action taken, in nature particular demonstrate of by the in establishing threat, specific and a threat. the and expression the and In reference to the restrictions on speech in Article 19(3), General DDIN 8 9 10 11 M K Political Rights (ICCPR). Then, Part II will look at the ways French speech law embodies the aforementioned double standard because of its failure to adopt the international standard on provocation. The paper will conclude by advocating for a more uniform, more protective approach to speech—one willlawthat French conformitybring into with law. international 2015] 11 - U speech. Article 19 interference” and “the right to freedom of expression.” delineates “the right to hold opinions without 12, 2011). 12, 1966), www.refworld.org/docid/3ae6b3aa0.html. 1966), Comment No. 34 that: highlights prepared by the U.N. Human Rights Committee the government could not prohibit speech “except where such advocacy is that is “direct[ly] and immediate[ly]” tied to the expression. In other words, expression cannot be limited on the basis of a General Assembly in 1976. International Law on Provocative Speech Provocative on Law International civil-political-rights-iccpr (last updated Apr. 2014). 2014). Apr. updated (last civil-political-rights-iccpr that these rights are “subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection public order ( of national security or of the ICCPR specifies propaganda” further and “any advocacy of limits national, racial or religious hatred for that violence.” or incitementdiscrimination,hostility constitutes to free speech, prohibiting “any limitation is akin to the “incitement to imminent violence” standard in U.S. jurisprudence. In C Y 37792-fiu_11-1 Sheet No. 99 Side A 04/28/2016 10:11:02 A 04/28/2016 99 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 99 Side B 04/28/2016 10:11:02 M K to C Y intends [Vol. 11:189 11:189 [Vol. to produce such action. According to the study, study, the to According 14 likely violence when he or she she or he when violence The first category of speech falls falls speech of category first The 17 19 at 21, www.ohchr.org/Documents/Issues/Expression/ incites , art. 12 FIU Law Review Law FIU note 11, ¶ 50, at 12–13. Towards an Interpretation of Article 20 of the ICCPR: Thresholds violence by engaging in speech that causes a a causes that speech in engaging by violence ) 4/25/16 9:33 PM supra ELETE D OT N 13 , 395 U.S. at 448. at U.S. 395 , O provokes (D Court, which held that “the mere abstract teaching . . . of the the of . . . teaching abstract mere “the that held which Court, In contrast, a speaker speaker a contrast, In DOCX 16 18 at 17. at then the speech can be restricted. However, if the speech in in speech the if However, restricted. be can speech the then Id. Id. Brandenburg _4.25. 395 U.S. 444, 447-49 (1969). al., Gen. comment No. 34, et Bukovska Barbora 131 Standard U.S. the for Case A Exceptions: Order Public and Speech Free Uddin, Asma 15 A speaker The listed criteria are similar to the distinction drawn by the A 2010 study prepared for the Office of the High Commissioner for ICCPR Article 20’s limits on speech should be interpreted in a similar Articles 19 and 20 are compatible with and complement The each acts other. that are addressed in article 20 are pursuant all subject to to restriction article 19, justified paragraph on the 3. basis of As article 20 must such, also 3. paragraph comply a with article limitation 19, that is DDIN 12 13 14 15 16 17 18 listener to be “so outraged that [he mayhem.” feels] compelled to riot and commit produce imminent lawless action and is ICCPR/Vienna/CRP7Callamard.pdf. question does not pass even one of these tests, it could not be legitimately prohibited. 192 directed to inciting or producing imminent lawless action and is action.” such produce or incite likely to 11 - U within the ambit of provocation, whereas the latter constitutes incitement to incitement constitutes the latter whereas the of ambit within provocation, imminentviolence. Brandenburg moral or propriety even moral necessity for a resort to force and violence” constitutes protected speech, whereas “preparing a group for violent action and steering it to such action” is not. Human Rights (OHCHR) echoes this position. for the Prohibition of Incitement to Hatred (2015) (unpublished manuscript) (on file Post). C. Robert Professor with Brigham Young University Law Review) (quoting vein. General Comment No. 34 notes that: notes 34 CommentNo. General vein. Article 20, in practice, requires courts to evaluate speech based on a series meetsquestion mostin “the speech of the standard If the tests. of and severe deeply felt form of opprobrium,” has “specific intent,” and/or contains a “direct explicit call violence,” to is directed at a commit general public or the individuals in leads a to imminent public harm, action–discrimination, and space, is “very likely to result in criminal hostility action and or harm,” 37792-fiu_11-1 Sheet No. 99 Side B 04/28/2016 10:11:02 B 04/28/2016 99 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 100 Side A 04/28/2016 10:11:02 In 2006, 2006, In L. 1313, 1326 by urging urging by 19 L ’ 21 NT .J.I EO 193 193 20 , 44 G , Nov. 2013, at 1–2, www.brookings. NSTITUTION I ROOKINGS Rethinking the “Red Line”: The Intersection of Free Speech, , B ) 4/25/16 9:33 PM ELETE D Provocative Speech in French Law French in Speech Provocative To Ban or Not to Ban Blasphemous Videos OT N O (D DOCX at 1327. at Id. _4.25. Evelyn Aswad, Aswad, Evelyn Tarin, Haris & Uddin Asma The U.N.’s independent human rights experts support this The experts have maintained this clarity despite a protracted battle The U.N.’s independent human rights experts have advocated for a the right to freedom of international religion legal standards, or does not include belief the right as not to enshrined have religion a or belief in that is free relevant from criticism or . . . ridicule defamation of religions may offend people and hurt their religious feelings but it does not necessarily or at least directly result freedomreligion. to of right the including rights, in a violation of their DDIN 19 20 21 M K expression . . . . . expression should never be used to abstract protect notions, concepts particular or institutions, beliefs, including or religious ones.” law,limit amountingspeech mere to provocation. interpretation of international law. In independent a 2008 statement experts, joined by then-U.N. Expression, other Frank La Special Rue, proclaimed that, Rapporteur “Restrictions on freedom on of Freedom of Measured against the OHCHR’s criteria, provocation, unlike incitement, is unlike incitement, the against Measured provocation, criteria, OHCHR’s protected speech because it does not involve “specific a intent,” “direct and/ or explicit call” to violence “imminent harm.” As such, a state or cannot, in accordance with international crime, or the possibility of leading to then-U.N. Special Rapporteur for Freedom of stated: Religion, Asma Jahangir, line drawing that does not restrict speech beliefs, that or merely is criticizes offensive religious to people of rights experts particular view offensive and faiths. critical speech as provocation, Instead, a category the human ICCPR. the under protected speech of over the precise standard. In 1999, Pakistan proposed U.N. a resolution General at the Assembly on Conference behalf (OIC) that of sought to the condemn organization goal “defamation of the of of so–called religion”; Defamation of the the Religions Resolution was Islamic to religion “protect generally and Islam specifically from ‘hate speech’” religious intolerance, including encourage understanding, attacks tolerance on and religious respect in places, matters and relating to to states to “take all appropriate measures to combat intolerance hatred, and discrimination, acts of violence, intimidation and coercion motivated by 2015] 11 - U (2013). edu/~/media/Research/Files/Papers/2013/11/us%20islamic%20world%20forum%20publications/Free% 20Speech_English_Web.pdf. Religious Freedom, and Social Change C Y 37792-fiu_11-1 Sheet No. 100 Side A 04/28/2016 10:11:02 A 04/28/2016 100 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 100 Side B 04/28/2016 10:11:02 M K C Y , 62 AN M [Vol. 11:189 11:189 [Vol. IGHTS OF R 23 .201, 221 (2004). (2004). 221 .201, ROBS .P ONTEMP 25 II L. & C L ART ECLARATION OF THE ’ P The Resolution had many flaws, as it it as flaws, many had Resolution The 22 FIU Law Review Law FIU RANSNAT ) 4/25/16 9:33 PM , 14 T 14 , The Permissibility of Incitement to Religious Hatred Offenses Under note 21, at 2. ELETE D Defamation of Religion: Rumors of Its Death Are Greatly Exaggerated supra OT N O . 347, 361 (2011). (2011). 361 347, . (D EV and suggested concrete steps “to foster a domestic environment environment domestic a foster “to steps concrete suggested and DOCX 24 .L.R ES Article 10 of France’s D France’s of 10 Article _4.25. Defamation of Religions, H.R.C. Res. 1999/82 (Apr. 30, 1999). Uddin & Tarin, Int’l Covenant on Civil and Political Rights art. 20 Dec. (2), 19, 1966, U.N.T.S. 171. Blitt, C. Robert Vance, C. Susannah 26 Over the years, there was a decline in support for the Resolution. “[C]riminalization of anti-religious speech forms part” of France’s Part I outlined the current international standard on provocative Law Speech Free French of Overview Brief A Resolution 16/18 thus brought the international consensus back to the W. R DDIN 22 23 24 25 26 ASE religious persons. U.N. Human “Combating Rights Intolerance, Negative Stereotyping and Council Stigmatization of, and resolution 16/18, Discrimination, titled Incitement to Violence, Based on Religion or Belief,” condemns and “any advocacy of religious hatred Violence against against individuals that constitutes incitement or discrimination, Persons hostility or violence.” Instead of sanctioning broad limits on speech in order to prevent the “defamation of religion,” Resolution 16/18 interpreted ICCPR Article 20(2) to proscribe only “incitement to imminent violence based on religion or belief,” Finally, in March of 2011, the OIC and the made U.N. significant progress Human in Rights recognizing the Council fundamental right of human expression. The OIC worked consensus closely on a with new resolution the that entirely United religions” language. Rather than protecting religions, the foregoes resolution protects the States “defamation to of reach “human rights tradition,” with speech order. restricted in the name of public The French Double Standard Double French The speech. Part II will examine French speech France’s laws and the failure ways in which to restrictions. speech contradictory comply with the international standard leads to “accorded “accorded human rights to religion/ideology rather than to individuals,” and actor.” ratherviolent limitspeaker the to the than “sought of religious tolerance, peace and respect.” and peace tolerance, religious of 194 freedom of religion or belief.” 11 - U restrict provocative speech. speech. provocative restrict incitement standard for freedom of expression, a standard that does not C Principles Convention European 37792-fiu_11-1 Sheet No. 100 Side B 04/28/2016 10:11:02 B 04/28/2016 100 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 101 Side A 04/28/2016 10:11:02 34 , an L. 229 1972 L AW OF ’ NT at 417. at Id. .J.I AW OF HI L (May 1, 2001), www. has been used in in used been has 15.1 C ,47–49(1994). 195 195 LEVEN AW L journalist Christian Perroux was RANCE 32 F décret Marchandeau NSTITUTE I LEVEN EDIA IN EDIA ,and courts were reluctant to to reluctant were courts ,and M The push was partly based on on based partly was push The HE 33 ROOKINGS ,T The Declaration inspired the L the inspired Declaration The ,B 27 UHN 29, 1881, enabled individuals to bring 29, 1881), banned “hate speech, making making speech, “hate banned 1881), 29, K The Avalon Project (Yale Law School, Lilian Goldman Goldman Lilian School, Law (Yale Project Avalon The upon which more recent anti-racism laws laws anti-racism recent more which upon In practice, however, the state rarely rarely state the however, practice, In 29 31 Perroux v. Ministere Public, ULY ULY J J AYMOND ) 4/25/16 9:33 PM translated in décret Marchandeau AW OF . 399, 408 (2000). 408 399, . ELETE , www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT00000607 AW OF D Provocative Speech in French Law French in Speech Provocative OL FR In recent decades, the P the decades, recent In . Nearly sixty years later, the the later, years sixty Nearly OT Race Policy in France .P 36 N note 26, at 222. at 26, note Racist Speech or Free Speech? A Comparison of the Law in France and the Regulating Hate Speech: Nothing Customary About It, 30 the “backdrop” the O More specifically, it proscribed “speech in both public and and public both in “speech proscribed it specifically, More OMP GOUV 28 . (D 35 supra DOCX ,32.4 C ,32.4 . at 408. at . Erik Bleich, Id Id. _4.25. Karen Bird, Bird, Karen case, 1971 the in example, For Cohen, Roni Prior to 1881, French free speech law was complex and unclear. The Law of July 29, 1881 of 1881 and Man of 29, Rights the of July of [Declaration Law Citoyen Du The et L’Homme the de Driots of Des unclear. and Declaration Freedom complex on was law 1881 29 speech July free of French [Law 1881, to presse la Prior de liberte la sur 1881 Vance, juillet 29 de Loi EGIFRANCE 29, 1881, In the years to follow, French civil rights organizations began to push DDIN 31 32 33 34 35 36 27 28 29 30 M K ULY apply the law outside the context of public disorder. public of context the outside law the apply states that “[n]o one including his religious shall views, provided their manifestation does not be disturb disquieted on the public order established by law.” account of his opinions, increasing concerns about racism workers, resulting and from partly an International influx on Convention on of France’s the foreign Elimination signing of Racial and Discrimination. ratifying of the U.N. prosecuted under the 07 22&dateTexte=vig. 07 have been framed, prohibited any public speech that provoked a crime or an attempted crime. for stricter laws against racist speech. These proposed laws, eventually combined into the P (which amended the L racial defamation and hatred provocation or to violence racial punishable by criminal law.” 2015] J 11 - U United States United acquitted of racially denigrating speech for his article criticizing Jewish French citizens for maintaining allegiance with Israel. The tribunal . . . injurious found of a nature to that, damage the honor and reputation although of the targeted persons,” Perroux’s the law “was not statements peace.” public general the against agitation punish to but individuals, protect to intended were “insulting and the Citizen], Aug. 26, 1789 (Fr.), Library). jurisprudence.this replace R to served Press] L whole group was implicated.” charges if they “had been named personally in a racist allowed invective.” state It also prosecutors to “initiate legal proceedings in cases where a non-public . . . places that ‘provoke against a person or discrimination, a group of people’ on hatred account of ethnicity, nationality, or race, or violence religion.” brookings.edu/research/articles/2001/05/france-bleich. amendment to the L C Y 37792-fiu_11-1 Sheet No. 101 Side A 04/28/2016 10:11:02 A 04/28/2016 101 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 101 Side B 04/28/2016 10:11:02 M K 45 HE to to C Y ,T [Vol. 11:189 11:189 [Vol. The Public Policy , “a stand-alone AW L French “courts have have “courts French 43 In 2001, France enacted ). 39 ELLOUCHE (Mar. 21, 2011), www.newyorker.com/culture/ 2011), 21, (Mar. .1139(2008).While the public order exception exception order public the .1139(2008).While ordre public 149, 158 (2007). 158 149, EV ORKER Y 37 L. R EW broad prohibitions, racist speech and hate hate and speech racist prohibitions, broad N CIENTIST FIU Law Review Law FIU public mood at a particular time and place AW .S has become “a function of time and place.” and time of function “a become has L OFSTRA ) 4/25/16 9:33 PM EHAV Yet, despite the centrality of the concept, the law law the concept, the of centrality the despite Yet, , www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT00000607 ELETE . B which defines the African slave trade as a “crime “crime a as trade slave African the defines which D , 36 H 42 M FR 40 . , Injure Raciale, LEVEN OT How the Maverick Christiane Taubira Is Transforming French Politics N note 26, at 224. at 26, note note 31, at 407 (emphasis added); Charles W. Mondora, note 26, at 230. at 26, note .2014-1353, which further amended the Law of July 29, Hate Crime Policy in Western Europe: Responding to Racist Violence in Britain, O AW , 51 A 51 , GOUV , which reinforced previous anti-racism laws and made the O . (D L Ordre public N supra supra supra AW 44 DOCX L Most recently, on November 13, 2014, the French parliament parliament French the 2014, 13, November on recently, Most AW . “The Freedom of Speech, or of the Press” and the Uniform Foreign-Country Money (Aug. 14, 2013, 11:09 EDT), www.theguardian.com/commentisfree/2013/aug/14/christiane- 41 led to the adoption, in July of 1990, of the highly controversial controversial highly the of 1990, of July in adoption, the to led Id , _4.25. Agnes Poirier, le contre lutte la a relatives Bleich, Erik dispositions les renforcant 2014 Vance, novembre 13 de 2014-1353 Loi Bird, Vance, Brody, Richard EGIFRANCE 38 AUBIRA A Way Forward: Clarifying “Public Order” “Public WayClarifying A Forward: A key concern of all of the aforementioned provisions is maintaining Despite Despite the P DDIN 41 42 43 44 37 38 39 40 AYSSOT UARDIAN functions in French law as the “public policy” exception works in American law, the latter is not used by functions in French law as the “public policy” exception works in American law, the latter is not 07 22&dateTexte=vig. 07 determine whether a certain expression is likely to cause a dangerous public disruption.” crimes continued to increase. such These as crimes, a horrific desecration of a Jewish cemetery attributed to a group, virulently anti-immigrant, anti-Semitic 1881. public order. “Hate speech legislation has response to increasing interethnic tensions, ensuring that diverse been groups can justified as a pragmatic cohabit peacefully.” passed L never articulated a clear definition of public order. Rather, judges seem to take into consideration the taubira-french-politics. G (2014); Loi de 29 juillet 1881 sur La Liberte de la Presse [Law of July 29 1881 on Freedom of the against humanity.” In 2003, it passed the L 196 high-profile cases, with academics, politicians, and hatred. racial inciting for it under movie stars charged G criminaloffence. a Holocaust Jewish the of denial the T 11 - U Press], L richard-brody/injure-raciale. terrorisme (1) [Law 2014-1353 of November 2014 on Strengthening the Provision on the Fight Against www.legifrance.gouv.fr. Terrorism], hate crimes law that enhances penalties for racism.” violent crimes motivated by Germany, and France and Germany, Exception Judgments Recognition Act nowhere defines “public order” (or, 37792-fiu_11-1 Sheet No. 101 Side B 04/28/2016 10:11:02 B 04/28/2016 101 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 102 Side A 04/28/2016 10:11:02 EWS Charlie , BBC N 197 197 .37,42(1938). But France’s history history France’s But 48 EV .L.R A 46 25 V And yet, how exactly the statement statement the exactly how yet, And 49 50 In addition to the Dieudonné example, example, Dieudonné the to addition In 51 See id. See note 4. note ) 4/25/16 9:33 PM (Jan. 16, 2015), www.newrepublic.com/article/120796/reaction-charlie- supra ELETE D Provocative Speech in French Law French in Speech Provocative #FreeSpeechStories: France Accused of “Double Standards” There’s a Model for How France Should Treat Its Muslims. It’s How France Public Policy and Ordre Public, Ordre and Policy Public OT N EPUBLIC O note 31, at 407. at 31, note R attacks. On one hand, the government upheld upheld government the hand, one On attacks. (D and “courts have consistently upheld the legality of speech speech of legality the upheld consistently have “courts and EW 47 supra , N DOCX Id. Id. _4.25. Gerhart Husserl, Bird, Wendling, Mike Carvajal & Cowell, McAuley, James as a bastion of free speech, and on the other hand, it brutally cracked cracked brutally it hand, other the on and speech, free of bastion a as While While these explanations try to draw clear, principled lines, they This fluidity naturally creates uncertainty and contradictions, most French media lawyer, Emmanuel Pierrat, drew the line at speech about Another media lawyer, Mathieu Davy, tried to explain the “double DDIN 45 46 47 48 49 50 51 M K And And given this fluid definition, the willgeneral itself.” “the is speech unprotected ultimate arbiter of protected versus “I feel like Charlie Coulibaly” “attacks” people or “incites hate,” instead of unclear. is concept, or idea an criticizing ultimately fail—in part because they do unclear “public order” not exception to account speech protection, one for that restricts the or role protects provocative speech depending on whether it of suits the political will. an recently reflected in the French government’s response in the wake of the Charlie Hebdo religion: “in France you can make drawings or speeches against ideology or against religion. The blasphemy” Revolution of 1789 abolished the crime of Hebdo down on contrarians like Dieudonné. response, commentators have In tried to muster the clarity in French face free speech of jurisprudence. this contradictory standard” as: “I have the right to criticize an idea, a concept or a religion. I have the right to criticize the powers in my country. But right to I attack people and incite hate.” don’t have the of singling out religion does not provide a principled basis for continuing to do so, especially since France’s approach to speech protections dramaticallytime.so over changed has generally American courts to restrict speech; on the contrary, it acts to ensure that other guarantees.speech free constitutional laws do not impede on www.bbc.com/news/blogs-trending-30850879. 2015), 17, (Jan. French law “selectively protects the others.” dignity than more groups minority of certain communities and 2015] 11 - U hebdo-shooting-highlights-free-speech-disparity. Treats Its Jews consider that, while a cartoon depicting a Muslim being shot while holding the Qur’an, drawn in reference to the massacre of 1,300 protestors against directed at religions or historical religious figures.” C Y 37792-fiu_11-1 Sheet No. 102 Side A 04/28/2016 10:11:02 A 04/28/2016 102 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 102 Side B 04/28/2016 10:11:02 ! M K C Y AHOO And And Y (Feb. 18, 57 Charlie IMES [Vol. 11:189 11:189 [Vol. (Aug. 2, 2008), 2, (Aug. (June 22, 2012), (Jan. 13, 2015), N.Y. T IMES UARDIAN G ORKER Y N.Y. T HE T Thousands of police and and police of Thousands EW 59 engaged in self-censorship: self-censorship: in engaged , N (Mar. 21, 2011), www.newyorker.com/culture/ 2011), 21, (Mar. 3, 4 (2015). director being shot down with a copy copy a with down shot being director ORKER Y ODAY T ” after a video of him making anti-Semitic New Issue of Charlie Hebdo Sells Out Quickly, Charlie Hebdo EW N FIU Law Review Law FIU 52 ) 4/25/16 9:33 PM Even Even 56 A French Jester Who Trades in Hate, Charlie Hebdo The Shadow of Anti-Semitism ELETE NTHROPOLOGY D And Brice Hortefeux, who once served as the Minister Minister the as served once who Hortefeux, Brice And Injure Raciale, injure raciale OT In the Name of the Republic: Untimely Meditations on the Aftermath of the 53 “Anti-Semitic” Satire Divides Liberal Paris, N France: Commentator Convicted for Inciting Racial Bias, note 52,note 4–5. at 31.2 A 31.2 O (D John Galliano, the head designer at Christian Dior, was fired fired was Dior, Christian at designer head the Galliano, John 55 supra DOCX there were no protests from the director of the magazine. 58 David Remnick, Elaine Ganley & Jamey Keaten, _4.25. Richard Brody, Brody, Richard Baume, la de Maia Burke, Jason Fassin, Didier Fassin, Fassin, Didier Sayare, Scott attacks, the Justice Ministry issued new rules to prosecutors and and prosecutors to rules new issued Ministry Justice the attacks, 54 (Jan. 14, 2015), https://news.yahoo.com/charlie-hebdo-sells-dawn-muhammad-cover-0802554 Similarly, the French government prosecutes anti-Semitism Unclear guidelines also accede too much power to the government. In And unlike its approach to anti-Muslim speech, the French DDIN 54 55 56 57 58 59 52 53 EWS them employment. government cracks down on anti-Arab speech. In February commentator 2011, French Eric Zemmour discrimination” was for convicted declaring of on dealers “provocation are blacks television and Arabs” and to that employers that “have the right” racial to “the deny majority of drug in 2008, the French satire magazine fired one of its most famous and oldest cartoonists, Siné, for writing an article considered to be anti-Semitic. aggressively. and charged with “ remarks surfaced. French-Cameroonian M’Bala has been convicted seven times and fined various amounts for comedian his Dieudonné anti-Semitic comments. M’Bala addition to France’s already-stringent laws on free speech, after the Hebdo judges for trying those who defended the attacks. www.nytimes.com/2012/06/24/movies/dieudonne-french-comic-behind-the-anti-semite.html?_r=0. 198 Egyptian General Sisi’s coup, did not result in any arrests, a sixteen-year- old was arrested for posting on Facebook a spin-off of this time depicting the the same cartoon, 11 - U N richard-brody/injure-raciale. 47.html. Charlie Hebdo Attack, Hebdo Charlie 2011), www.nytimes.com/2011/02/19/world/europe/19briefs-France.html. www.nytimes.com/2011/02/19/world/europe/19briefs-France.html. 2011), www.newyorker.com/news/daily-comment/shadow-anti-semitism-france. yet, when Siné wrote a piece in which her in to ‘kick he wanted woman he saw a “when that veiled and Muslims” he stated that he “could not bear ass,’” the of the Interior, has been convicted of “racial insult” for comments been convicted of “racial insult” for of the Interior, has caught on video regarding Arabic immigrants, and euros. fined seven hundred and fifty www.theguardian.com/world/2008/aug/03/france.pressandpublishing. www.theguardian.com/world/2008/aug/03/france.pressandpublishing. of the magazine in his hands. magazinehis the in of 37792-fiu_11-1 Sheet No. 102 Side B 04/28/2016 10:11:02 B 04/28/2016 102 Side Sheet No. 37792-fiu_11-1 37792-fiu_11-1 Sheet No. 103 Side A 04/28/2016 10:11:02 . M OST A The The —tied —tied 62 attacks attacks , N.Y. P LJAZEERA A 63 More than fifty fifty than More potentially 60 199 199 These principles are are principles These 64 Charlie Hebdo 3, 4 (2015). Among those punished for inciting inciting for punished those Among ODAY 61 T ONCLUSION C ) 4/25/16 9:33 PM ELETE NTHROPOLOGY Police Detain 8-Year-Old Who Backed Charlie Hebdo Attack D Provocative Speech in French Law French in Speech Provocative OT In the Name of the Republic: Untimely Meditations on the Aftermath of the N 31.2 A 31.2 O (D DOCX France Arrests 54 for “Defending Terrorism” After Charlie Hebdo Attack, Id. _4.25. Didier Fassin, Fassin, Didier Press, Associated Brandenburg v. Ohio, 395 U.S. 444, 448 (1969). One way to bring consistency to speech protections in France is to The French government’s reaction to the DDIN 60 61 62 63 64 M K soldiers were deployed around the country, remarks moving or to praise quash any for racist terrorists verbal support for terrorism or racism and anti-Semitism.” by “detaining anyone who shows even delineate the precise contours of the “public order” exception international in law the suggests. way ICCPR Article 19 requires that a is “direct[ly] and immediate[ly]”—rather “specific” than merely threat to the expression. The parallel incitement to protects imminent violence “the standard mere abstract . . . teaching moral of necessity for a the resort to moralforce and violence.” propriety or even French police even went as far as to detain and question an eight-year-old boy who said, “The French deserved.” they mustwhat got journalists be the and well, did killed. Muslims I am with the terrorists. The application, and protective of a much broader range of speech. of range mucha broader of protective and application, widely applicable across various speech types, amenable to consistent reproduced on Facebook a cartoon that supported the terrorists. terrorism was a mentally ill man who killed Charlie, I had a declared, “They good laugh,” a man who posted “[u]sing a pencil and using a Kalashnikov are the same” on Facebook; and the above-mentioned sixteen-year-old who (Jan. 29, attack. 2015), www.nypost.com/2015/01/29/police-detain-8-year-old-who-backed-charlie-hebdo- 2015] 11 - U Charlie Hebdo Attack, Hebdo Charlie (Jan. 14, 2015), www.america.aljazeera.com/articles/2015/1/14/france-charliehebdoarrests.html. 2015), 14, (Jan. brought to the fore the vague, overbroad nature of French speech laws and their inherent potential for abuse. Its blatant double standard in punishing politically unfavorable speech highlights the need for clear guidance, and, more specifically, the usefulness of drawing the line where lawincitementprovocation. at than does: rather international people were arrested for defending terrorism following over the the two attacks, week several period immediate of sentencing which measures. were convicted under special C Y 37792-fiu_11-1 Sheet No. 103 Side A 04/28/2016 10:11:02 A 04/28/2016 103 Side Sheet No. 37792-fiu_11-1